Mock and announce.

Mock and Announce

How long does it take to flush the 9th Circuit down the toilet?

There must be some unwritten opinion-writing law for 9th Circuit judges that holds:

Where at all possible, decide close cases for the defendant, particularly if he is indisputably guilty. Take the most extreme possible position you can, then craft a holding that reaches far beyond the facts of this case. Under no circumstances shall you cite controlling authority from the Supreme Court, or contradictory cases from your own or other circuits. Strive to write the opinion as though you are God and you invented The Law yesterday.

Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.

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I'm in the odd position of having witnessed two oral arguments in two consecutive weeks at which the party who prevailed in the 9th Circuit is unable to defend its reasoning. Increasingly, it feels as if there are always three parties at oral argument—both parties to the dispute and the 9th Circuit, lingering there, incomprehensible to all.

Today's case will have a profound effect on how police, and the writers of Law & Order, do business in the future. In United States v. Lashawn Banks the question is how long the police must wait before bashing down your door to search your home. The Fourth Amendment bars the state from unreasonable searches and seizures. One of the things that makes a search constitutionally "reasonable" is the presence of a warrant. Another is an old common-law requirement: the so-called knock-and-announce rule. The rule is codified in 18 USC § 3109, which provides that in executing a search warrant, "an officer may break open any outer or inner door or window of a house, or any part of a house … if, after notice of his authority and purpose, he is refused admittance." In cases of likely destruction of the evidence, or danger to life, the cops are free to bash first and knock later.

All this means, as you'll recall from Wednesday nights, that Lennie and Ed and must usually knock, yell, "Police! Open the door," then wait some respectful interval before summoning the guys with the battering ram. How long? Well, the boys on the 9th Circuit seem to be of the opinion that one should give the drug dealer in question the opportunity to flush the coke, touch up his highlights, purchase a ticket from Orbitz, then climb out the fire escape, as the cops (to quote Ross from last week's Friends) count Mississippi-ly in the hall.

The 9th Circuit judges in question—one of whom was, in fairness, a 5th * Circuit judge sitting by designation (who died shortly after authoring the opinion in question, so one wants to be careful with the sarcasm)—were particularly moved by the fact that Mr. Banks was in the shower when the police only waited 15 to 20 seconds before bashing his door in. The word "soapy" appears several times in the opinion. Unclear if they might have decided differently had Banks been given an opportunity to rinse and repeat. The soapiness is clearly cause for heightened constitutional scrutiny. The panel, ignoring reams of precedent, chose to set up an elaborate decision matrix, with level of exigency on one axis and the need to damage property on another. It would take a team of NASA scientists to calculate when a no-knock entry or a brief wait would be appropriate using this calculus. The result is a rigid, yet incomprehensible, rule that would have cops waiting some unspecified "longer" period of time than 15 to 20 seconds in non-exigent cases where doors will be bashed.

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Defendant Banks, by the way, wants to suppress the evidence found as a result of that search, including the three guns, 11 ounces of crack, a scale, and $6,000 in cash. Even though, as the 9th Circuit dissenter points out, the cops could have waited 50 seconds and Banks still would have been in the shower, unable to hear them knock.

Justice David Souter offers a hypothetical that carries through today's oral argument, questioning David Salmons, of the solicitor general's office, with a scenario in which a piano is the evidence in question (pianos being—I'm sure we can all agree—fairly hard to flush). Souter wants to know whether drug cases are different since the flushability of the key evidence almost by definition creates exigency. This is an obvious observation, but somewhat precluded by a 1997 case, Richards v. Wisconsin, in which the Supreme Court refused to uphold a per se rule getting rid of the knock-and-announce requirement in drug cases. Drugs (flushable or otherwise) can't automatically create exigency.

Salmons' position is that there can be no hard and fast rule dictating how long cops should wait. Officers on the scene must assess the totality of the circumstances. He says the only relevant question is how long it would take the suspect to get to the door.

No, says Justice John Paul Stevens, the important question under 3109 is not how long it would take the suspect to get to the door, but how long it would take "for the police to conclude he's not coming to the door." Because the statute only lets you knock down the door once you've been refused entry. That's right, we're listening for sounds of not-coming today.

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Justice Sandra Day O'Connor wonders if it's unconstitutional to bash down someone's door if he shouts, "Wait, I'm in the shower, I'm coming." Salmons seems to feel that the suspect may "have the drugs with him in the shower." If his crack was dirty, say, from the last time he flushed it down the toilet.

Stevens is still hung up on the statute. The statute requires "refusal" to admit the cops. Silence is not refusal, he says. Salmons replies, "That is the way the statute is worded. But this court has never construed the statute to be read literally."

Hold the phone.

This is a court that is rabid about construing statutes literally. This is a court that would read Dada poetry literally. They are strangely satisfied with this answer.

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Justice Stephen Breyer suggests that "refusal" alone cannot trigger 3109: As he posits: Suppose the person behind the door says, "Oh, the police! Welcome! Just wait one minute while I flush these drugs down the toilet—it'll just take a sec." That isn't refusal to open the door. Salmons repeats that 3109 is not meant to be read literally.

Randall J. Roske represents Banks. He starts by warning the justices that this case is about whether their doors are sacred. This "next-time-it-could-be-you" tactic never works with the justices since they so rarely deal crack from their homes.

The chief interrupts with: "Well, we have a case, Ramirez, which the 9th Circuit didn't even cite!" Roske tells him the court could find the 9th Circuit "flat wrong" and still affirm their decision. He's practically begging: Cut those loonies loose!

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Here's where Breyer points out that other circuits have found 10 to 15 seconds a permissible wait; that one even found six seconds OK. Roske responds that "the modern marvel of indoor plumbing provides one with the opportunity to destroy evidence … and also to shower oneself."

Scalia has had it with the showers. "What does the shower have to do with it? Your constitutional reasonableness is the time it takes someone to complete a shower, dry himself, and grab a towel? Why is the shower relevant?" Roske replies that we have no idea how long Mr. Banks would have continued his shower.

"We don't know and we don't care," retorts Scalia.

Justice Breyer cuts to the heart of things: "Is there anything other than your opinion, which I respect, to use as the basis for this?" he asks.

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Shortly, Roske notes that the smallness of Banks' apartment was also a factor for the police decision to break down the door. Scalia snaps back that he can't believe the rule is that it's OK for people to deal drugs, "so long as they do it in really big houses with lots of toilets."

Stevens presses Roske to come up with some clear unit of time after which it's all right to enter without consent. Roske refuses to "set a bright-line rule" (which is of course why this case is unwinnable). Stevens says to just give him a rule for the facts of this case. Scalia offers "the shower rule." Roske says a minute would be OK. (That would be the "leave-in conditioner" rule?)

Then there's one of those moments where you can actually see each of the justices glaze over while Roske really just chats for a while. He talks about dignity and purpose, the inevitable discovery doctrine, and the dimensions of Banks' apartment. When he gets to King Edward I, the questions stop altogether. The court did not take this case from the 9th Circuit to affirm it. They will trash the exigency/door-bash test faster than you could shave your right leg. The real question is, why does the 9th Circuit keep making it so damn easy?

Correction, Oct. 16, 2003: This article originally stated that the authoring judge was sitting by designation from the 6th Circuit. He was in fact from the 5th Circuit. (Return to corrected sentence.)